[Rape] Misconception Of Fact About Promise To Marry Has To Be In Proximity Of Time To The Occurrence: Supreme Court

The Supreme Court, in its judgment acquitting a man accused of raping a woman on the pretext of marriage, ruled “that misconception of fact arising out of a promise to marry has to be in proximity of time to the occurrence and cannot be spread over a long period of time coupled with a conscious positive action not to protest”.

Brief Facts

  • The Prosecuterix alleges that the accused Maheshwar Tigga has been promising to marry her and on that alleged reason continued to begin physical relations with her as husband and wife.
  • The Prosecuterix also alleged that she had resided at his house for 15 days in which also he established physical relations with her.
  • The Trial Court convicted the accused under sec 376, 323 and 341 of the IPC. His appeal was dismissed by Karnataka High Court.


While considering his appeal, the Supreme Court noted that in this case, they were both smitten by each other and passions of youth ruled over their minds and emotions. The physical relations that followed was not isolated or sporadic in nature, but regular over the years. The prosecutrix had even gone and resided in the house of the appellant. In our opinion, the delay of four years in the lodgement of the FIR, at an opportune time of seven days, prior to the appellant solemnising his marriage with another girl, on the pretext of a promise to the prosecutrix raises serious doubts about the truth and veracity of the allegations levelled by the prosecutrix. The entire genesis of the case is in serious doubt in view of the admission of the prosecutrix in cross-examination that no incident had occurred on 09.04.1999.

 The court also noted that these letters would show that the accused was serious about the relationship desiring to culminate the same into marriage. But unfortunately for societal reasons, the marriage could not materialize as they belonged to different communities, it said. The court said that Section 375 would apply only if the accused intentionally made a fraudulent misrepresentation from the very inception and the prosecutrix gave her consent on a misconception of fact. It further added:


Under Section 90 IPC, a consent given under a misconception of fact is no consent in the eyes of law. But the misconception of fact has to be in proximity of time to the occurrence and cannot be spread over a period of four years. It hardly needs any elaboration that the consent by the appellant was a conscious and informed choice made by her after due deliberation, it is spread over a long period of time coupled with a conscious positive action not to protest. The prosecutrix in her letters to the appellant also mentions that there would often be quarrels at her home with her family members with regard to the relationship, and beatings were given to her.

At the time of acquitting the accused, the Court further ruled that:

The prosecutrix was aware of the obstacles in their relationship because of different religious beliefs. An engagement ceremony was also held in the solemn belief that the societal obstacles would be overcome, but unfortunately, differences also arose whether the marriage was to solemnised in the Church or in a Temple and ultimately failed. It is not possible to hold on the evidence available that the appellant right from the inception did not intend to marry the prosecutrix ever and had fraudulently misrepresented only in order to establish physical relation with her. The prosecutrix in her letters acknowledged that the appellant’s family was always very nice to her.

The consent of the prosecutrix was but a conscious and deliberated choice, as distinct from an involuntary action or denial and which opportunity was available to her, because of her deep­seated love for the appellant leading her to willingly permit him liberties with her body, which according to normal human behaviour are permitted only to a person with whom one is deeply in love.

Case no.: CRIMINAL APPEAL NO. 635 OF 2020
Coram: Justices Rohinton Fali Nariman, Navin Sinha and Indira Banerjee

One thought on “[Rape] Misconception Of Fact About Promise To Marry Has To Be In Proximity Of Time To The Occurrence: Supreme Court

  • Sep 29, 2020 at 11:19 pm

    Traditionally, the law defines the crime of rape to be an act of sexual intercourse accomplished by a man with a woman, not his wife, by force and against her will. Section 375 of the Indian Penal Code deals with the offence of rape. Clause 2 of section 375 outlines rape- without the consent of the woman, in instances when the essence of the rape is the absence of consent. Consent means an intelligent, positive concurrence of the ‘will’ of the woman. The principle behind consent is that man is the best judge of his or her own interest, and that no man will consent to what he or she considers injurious to his or her own interest, and that if a man or woman decided to suffer harm voluntarily, he or she cannot complain of it when it comes about. The key issue here is that to absolve a person from criminal liability, consent must be given freely, and it must not be obtained by fraud or by mistake or under a misconception of a fact. The language of autonomy is sometimes used to explain the role of consent. The principle of autonomy involves a claim that individuals should be allowed to make decisions for them and that those decisions should be respected by others, including the law, unless the decision involves harming another.

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